Citation Nr: 18157973 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-00 641A DATE: December 13, 2018 ORDER Service connection for a low back condition is granted. Service connection for a left shoulder condition is denied. Service connection for a right wrist condition is denied. REMANDED The issue of entitlement to service connection for right upper quadrant pain is remanded. The issue of entitlement to service connection for tinea pedis is remanded. VETERAN’S CONTENTIONS FINDINGS OF FACT 1. The Veteran has a current back condition, diagnosed as degenerative arthritis, that is presumed to be etiologically related to his active service. 2. The Veteran does not have a current diagnosed left shoulder condition, and does not experience any functional impairment related to his complaints of left shoulder pain and stiffness. 3. The Veteran does not have a current diagnosed right wrist condition, and does not experience any functional impairment related to his complaints of right wrist pain and stiffness. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition are met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a left shoulder condition are not met. 38 U.S.C. 1101, 1110, 1111, 1112, 1113, 1131, and 1137. 38 C.F.R §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a right wrist condition are not met. 38 U.S.C.§§ 1101, 1110, 1111, 1112, 1113, 1131, and 1137. 38 C.F.R §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2007 to August 2011. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction was transferred to the RO in Atlanta, Georgia. 1. Entitlement to service connection for a low back condition. The Veteran seeks service connection for a low back condition. Specifically, the Veteran contends that he was treated and placed on profile due to his low back condition several times while on active duty and that this condition has persisted since service. The Board notes that the Veteran is competent to report that he first experienced back pain in-service and that the symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. The Veteran’s service treatment records (STRs) document several in-service complaints of severe back pain and diagnoses of sacroiliitis. Post-service treatment records document ongoing complaint and treatment of a low back condition. In February 2012, a VA clinician noted a history of chronic back pain. In August 2015, a VA clinician diagnosed the Veteran with chronic lumbago caused by years of lifting heavy parts as supply staff in the Air Force. In January 2016, the Veteran was diagnosed with mild lower lumbar spine degenerative changes. The Board acknowledges that the evidence of record includes a June 2011 VA examination report in which the examiner opined that there was no diagnosis of a low back condition because there was no pathology to render a diagnosis at the time the Veteran was examined prior to separation from service, or at the time of the June 2011 VA examination. However, the Board finds the June 2011 VA examiner opinion inadequate. The Board notes that the Veteran’s VA treatment records document mild lower lumbar spine degenerative changes. See January 2016 VA Fort Wayne Records. The June 2011 VA examiner did not address this diagnosis in rendering his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (an adequate VA medical examination must consider the Veteran's pertinent medical history). As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. On the other hand, the Veteran has competently identified that his low back pain began in service and has continued since that time, and those statements have been found credible by the Board. Further, his reports of in-service back pain are documented in his STRs. While the Veteran is not competent to establish a diagnosis of arthritis, as that requires medical imaging and a medical opinion, his statements of continuity of low back pain are sufficient to establish a link between his current diagnosis of degenerative arthritis and his in-service treatment for low back pain. Arthritis is a chronic disease, and the Veteran has competently and credibly attested to the continuity of symptomatology of low back pain, which was immediately noted following service and later diagnosed as degenerative arthritis. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a back condition is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back condition is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a left shoulder condition and entitlement to service connection for a right wrist condition. The Veteran seeks service connection for a left shoulder condition and a right wrist condition. Specifically, the Veteran contends that he has a left shoulder condition and a right wrist condition which have persisted since service. Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge.) The Veteran’s STRs document complaints of and treatment for left shoulder pain. The Veteran's STRs are negative for evidence of a right wrist condition. Post-service treatment records are negative for a left shoulder condition. Post-service treatment records document right wrist pain. The evidence of record includes a July 2011 VA examination report in which the examiner documented that the Veteran reported a left shoulder condition and right wrist condition existing for four years. The Veteran reported that his symptoms included stiffness and pain. Following examination of the Veteran, the July 2011 VA examiner opined that there was no current diagnosis of a left shoulder condition, or a right shoulder condition. The examiner reasoned that there was no pathology to render either diagnoses; there was no fracture dislocation or other pathology of the right wrist demonstrated and detailed viewed of the left shoulder revealed no fracture, dislocation, or joint space narrowing. The examiner further reasoned that the Veteran denied weakness, swelling, heat, redness, giving way, lack of endurance, locking, fatiguability, deformity, tenderness, drainage, effusion, subluxation, dislocation, and flare-ups; and the Veteran was not receiving any treatment for the conditions. The Board finds the July 2011 VA examiner opinion, which concluded that the Veteran does not have a left shoulder condition, or right wrist condition to be highly probative. The opinion was provided after examining the Veteran and considering relevant facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The opinion also contains a sufficient rationale. The medical evidence of record otherwise includes VA treatment records which are also negative for a currently diagnosed left shoulder condition, or right wrist condition. The Board acknowledges the Veteran’s contentions regarding ongoing left shoulder and right wrist pain. The Board also recognizes the recent decision in Saunders v. Wilkie that "pain alone can serve as a functional impairment and therefore qualify as a disability." No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. Here, there is no evidence that the Veteran’s left shoulder pain or right wrist pain reaches the level of functional impairment of earning capacity. Indeed, the Veteran reported during the June 2011 VA examination that he does not experience any overall functional impairment from his conditions. See June 2011 VA Examination. As the competent evidence of record fails to show that the Veteran has a current left shoulder condition, or a right wrist condition; and there is no evidence of such disabilities during the appeal period, his claims for service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran has asserted that he has a left shoulder condition and a right wrist condition due to service, the Board notes again that he is not competent to provide evidence pertaining to the diagnosis and etiology of a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d at 1316. Whether the Veteran has a left shoulder condition and left shoulder condition and whether the conditions are related to his period of active service are complex questions that are not answerable by personal observation alone or by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; see also Jandreau, 492 F.3d at n.4. REASONS FOR REMAND 1. Entitlement to service connection for right upper quadrant pain is remanded. The Veteran seeks service connection for right upper quadrant pain. Specifically, the Veteran contends that he was treated for related symptoms while on active duty and this condition has persisted since service. In this regard, the evidence of record includes a June 2011 VA examination report in which the examiner diagnosed the Veteran with right upper quadrant pain of undetermined etiology. In an addendum opinion the June 2011 VA examiner clarified that there was no diagnosis related to the Veteran’s right upper quadrant pain as there was no pathology to render diagnosis. Service connection may be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1) (2017). To qualify for compensation based on an undiagnosed illness under 38 C.F.R. § 3.317, a "Persian Gulf Veteran" is defined as "a veteran who served on active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War." 38 C.F.R. § 3.317 (e) (2017). The term "Southwest Asia theater of operations" refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). A review of the Veteran’s claims file indicates that he may have service qualifying him as a "Persian Gulf Veteran." However, to date, it is unclear as to whether the Veteran’s complete military records have been requested. These records should be requested on remand so that consideration can be given to whether the Veteran is eligible for service connection for an undiagnosed illness under 38 C.F.R. § 3.317. 2. Entitlement to service connection for tinea pedis is remanded. The Veteran seeks service connection for tinea pedis. Specifically, the Veteran contends that he was treated for related symptoms while on active duty and this condition has persisted since service. In this regard, the evidence of record includes a June 2011 VA examination report in which the Veteran reported a prior history of bilateral tinea pedis. The examiner opined that there was no current diagnosis of athlete’s foot because there was no pathology to render a diagnosis. The Board finds the June 2011 VA examiner opinion inadequate upon which to decide the Veteran’s claim for service connection. The Board notes that the Veteran’s VA treatment records document that the Veteran was having problems with athlete’s foot on both feet. See October 2015 South Bend VA Clinic Records. The June 2011 VA examiner did not address this diagnosis in rendering his opinion. Therefore, an addendum opinion addressing this diagnosis should be obtained on remand. See Id. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Ensure that the Veteran’s complete military personnel records are associated with the claims file. 3. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of the Veteran's tinea pedis. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran has tinea pedis that had its onset in service, or within one year of his separation from service, or is otherwise related to service. The examiner is asked to specifically discuss the problems with athlete’s foot documented in the Veteran’s October 2015 South Bend VA Clinic Records. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel